In this
workers' compensation action, James R. Orren, a shuttle
car operator, injured his right knee and ankle in the course
of his employment while loading rock dust into a scoop bucket
for Magnum Coal Company. We are asked to determine the amount
of permanent partial disability sustained as a result of this
injury. After a thorough review of the evidence, we find that
Mr. Orren was fully compensated by his prior 5% permanent
partial disability award and is therefore entitled to no
additional award. We also find, after consideration of the
parties' briefs and evidentiary record, that the
decisional process would not be significantly benefitted by
oral argument. We find no substantial question of law or
prejudicial error. Therefore, a memorandum decision is
appropriate under Rule 21 of the Rules of Appellate
Procedure.

Mr.
Orren's claim was held compensable for fracture of the
medial malleolus and contusion of the knee. In order to
determine the amount of permanent impairment sustained, Paul
Bachwitt, M.D., performed an independent medical evaluation
in which he found fifteen degrees of dorsiflexion, forty-five
degrees of plantar flexion, twenty-five degrees of inversion,
and ten degrees of eversion for the right ankle. Dr. Bachwitt
diagnosed right knee contusion and closed, nondisplaced
fracture of the right medial malleolus. He found Mr. Orren
had reached maximum medical improvement and assessed 1%
impairment. Mr. Orren was then granted a 1% permanent partial
disability award.

Next,
Bruce Guberman, M.D., performed an independent medical
evaluation in which he found twenty degrees plantar flexion
with the knee fully extended, fifteen degrees plantar flexion
with the knee extended forty-five degrees, twelve degrees
dorsiflexion with the knee fully extended, fifteen degrees
dorsiflexion with the knee flexed forty-five degrees, ten
degrees inversion, and eight degrees eversion for the right
ankle. He found Mr. Orren had reached maximum medical
improvement and recommended 4% impairment.

Following
Dr. Guberman's assessment, Saghir Mir, M.D., performed an
independent medical evaluation. He found fifteen degrees
dorsiflexion, forty-five degrees plantar flexion, twenty-five
degrees inversion, and ten degrees eversion for the right
ankle. He noted that the right ankle showed slight varus
alignment of the heel as compared to the valgus on the left
ankle. He found Mr. Orren had reached maximum medical
improvement and assessed 3% impairment. Based on his opinion,
the Office of Judges reversed the claims administrator's
grant of a 1% award and granted Mr. Orren a 3% permanent
partial disability award instead.

Dr.
Guberman then performed another independent medical
evaluation in which he noted that Mr. Orren reported that his
symptoms had progressively worsened without additional
injury. Dr. Guberman found 114 degrees flexion and zero
degrees extension, fifteen degrees plantar flexion with the
knee fully extended, fifteen degrees plantar flexion with the
knee extended forty-five degrees, five degrees dorsiflexion
with the knee fully extended, zero degrees dorsiflexion with
the knee flexed to forty-five degrees, fifteen degrees
inversion, and four degrees eversion for the right ankle. He
further noted a fifteen degree varus deformity at the right
ankle. He found Mr. Orren had reached maximum medical
improvement and assessed 5% impairment.

Another
opinion was sought so Prasadarao Mukkamala, M.D., performed
an independent medical evaluation in which he found Mr. Orren
had reached maximum medical improvement. He found twenty
degrees inversion, ten degrees eversion, forty degrees
plantar flexion, and twenty degrees dorsiflexion. He
recommended 1% impairment. The claims administrator
determined that no additional permanent partial disability
award above the 3% already granted was necessary. However,
the Office of Judges reversed the decision and granted a 5%
permanent partial disability award. This decision was later
affirmed by the Board of Review.

Robert
Walker, M.D., next performed an independent medical
evaluation. He found thirty degrees plantar flexion, twenty
degrees extension, forty degrees flexion, and thirty-three
degrees extension for the right ankle. He noted that Mr.
Orren exhibited no varus or valgus deformities with the knees
but made no comment regarding the ankle. He assessed 10%
impairment. Dr. Guberman then performed his third evaluation
and noted that Mr. Orren's symptoms had progressively
worsened. He found ten degrees plantar flexion with the knee
fully extended, ten degrees plantar flexion with the knee
extended forty-five degrees, five degrees dorsiflexion with
the knee fully extended, three degrees dorsiflexion with the
knee flexed to forty-five degrees, two degrees inversion, and
three degrees eversion for the right ankle. He noted a
fifteen degree varus deformity. He recommended 8% impairment
for range of motion loss and 10% whole person impairment for
a combined total of 17% impairment.

Dr.
Mukkamala was then asked to perform another independent
medical evaluation. He found twenty degrees plantar flexion,
ten degrees dorsiflexion, fifteen degrees inversion, and ten
degrees eversion for the right ankle. He found no evidence of
varus deformity and assessed 4% impairment. Dr. Bachwitt was
also asked to perform another evaluation and found a fifteen
degree varus deformity in the right ankle. The right ankle
showed dorsiflexion of zero to seven degrees, plantar flexion
of zero to thirty degrees, inversion of zero to fifteen
degrees, and eversion of zero to fifteen degrees. He found
that the varus deformity was related to factors outside of
the compensable injury, suggesting that Mr. Orren had an old
ankle fracture prior to the subject injury which may have
progressed to a varus deformity. Dr. Bachwitt assessed 4%
impairment.

The
claims administrator granted no additional permanent partial
disability award beyond the 5% already awarded. The Office of
Judges affirmed the decision and noted that Mr. Orren had
gone almost five years in between treatments for the
compensable injury. The Office of Judges concluded that he
has a varus deformity of the right ankle. This was first
noted by Dr. Mir and more fully brought to light by Dr.
Guberman's evaluation in which he recommended 5%
impairment. The Office of Judges determined that it had
already considered Dr. Guberman's recommendation with
regard to the varus deformity in prior decision. In that
Order, the Office of Judges found that Dr. Guberman's
observation of a varus deformity was uncorroborated by the
evidentiary record. This decision was appealed to the Board
of Review and this Court, both of which affirmed. In his
third report, Dr. Guberman once again noted the varus
deformity; however, this time he recommended 10% impairment.
Dr. Mukkamala found no varus deformity in his report, and Dr.
Bachwitt attributed the deformity to a non-compensable
condition. The Office of Judges held that whether Dr.
Guberman recommended 5% or 10% impairment for the varus
deformity, the issue has already been ruled upon by the
Office of Judges, Board of Review, and this Court. Dr.
Bachwitt, the only orthopedic surgeon to recently examine Mr.
Orren's ankle, indicated the deformity is not due to the
compensable injury. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed its Order.

On
appeal before this Court, Mr. Orren argues that Dr. Guberman
found a progression of his impairment. Because Dr. Guberman
had previously evaluated him, he was in the best position to
determine if there was an aggravation or progression of the
condition. Mr. Orren further asserts that Dr. Guberman's
opinion does not need to be corroborated in order to be
credible. Magnum Coal Company argues that Dr. Guberman was
the only physician of record to find additional impairment
for the varus deformity, and his opinion is not corroborated
by the evidence of record.

After
review of the evidence of record and the parties'
arguments, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. A
preponderance of the evidence indicates Mr. Orren has been
fully compensated by the 5% permanent partial disability
award he has already received. No additional award is
warranted. We therefore find that the decision of the Board
of Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
affirmed.

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